WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from decision of a Medical Assessor; demonstrable error; incorrect criteria; assessment by analogy rather than range of motion; failure to give sufficient reasons; Held - Medical Assessment Certificate revoked due to insufficient reasons; on re-examination by Appeal Panel degree of permanent impairment not fully ascertainable.

1. On 15 July 2025, San San Yu, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 July 2025.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

(a) the assessment was made on the basis of incorrect criteria, and

(b) the MAC contains a demonstrable error.

1. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
2. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
3. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. Liability with respect to the appellant's injuries was the subject of a dispute which was determined by Member Burge in a Certificate of Determination dated 9 April 2024 where the Personal Injury Commission (Commission) determined that the appellant sustained an injury to her right shoulder in the course of her employment with the respondent on 2 April 2022 and that she suffered consequential conditions to her right wrist and hand. The issue of consequential condition to the neck and secondary psychological condition were determined in favour of the respondent.
2. On 7 August 2024 the appellant made a claim for lump sum compensation in accordance with s 66 of the Workers Compensation Act 1987 with respect to 29% whole person impairment for injuries to her right upper limb occurring on 2 April 2022.
3. The appellant commenced proceedings for lump sum compensation in the Commission on 17 April 2025 and the claim was referred to Medical Assessor Giblin for assessment. The Medical Assessor issued a Medical Assessment Certificate dated 8 July 2025 assessing the appellant's whole person impairment at 12%.
4. The appellant now appeals from that decision of the Medical Assessor.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that the Medical Assessor had failed to provide sufficient reasons, being a demonstrable error in accordance with s 327(3)(d) of the 1987 Act.
3. Having found error, the Appeal Panel determined that the applicant should undergo a further medical examination because there was insufficient material before the Appeal Panel to determine the applicant's degree of permanent impairment.
4. The Appeal Panel also directed the respondent to file and serve further evidence with respect to the respondent's reliance of two qualified medical reports in contravention of cl 44(1) of the Workers Compensation Regulation 2016 and brief additional submissions on the issue from the parties.
5. Despite the direction, no further material was provided by the parties.
6. However, having regard to the findings of the Appeal Panel, it has not been necessary for the Appeal Panel to further deal this issue. Ultimately it is an issue that ought to have been resolved by the parties prior to the matter being originally referred to the Medical Assessor. The parties should insure it is resolved prior to further referral to a Medical Assessor once maximum medical improvement has been reached.

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

1. Medical Assessor Doron Sher of the Appeal Panel conducted an examination of the worker on 10 October 2025 and reported to the Appeal Panel.

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel and discussed with respect to the Appeal Panel's findings and reasons below.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. Section 325(2)(c) of the 1998 Act requires a medical assessment certificate to "set out the medical assessor's reasons for that assessment".
4. The appellant submits that the MAC with respect to the right shoulder contains a demonstrable error and that the assessment was made on the basis of incorrect criteria.

1. It is necessary to set out the basis for assessment of the upper extremities. Permanent impairment of the upper extremities is assessed with reference to Chapter 2 of the Guidelines and Chapter 16 of the Guides.
2. 2.14 of the Guidelines provides:

"Most shoulder disorders with an abnormal range of movement are assessed according to AMA5 Section 16.4 'Evaluating abnormal motion'. (Please note that AMA5 indicates that internal and external rotation of the shoulder are to be measured with the arm abducted in the coronal plane to 90 degrees, and with the elbow flexed to 90 degrees. In those situations where abduction to 90 degrees is not possible, symmetrical measurement of rotation is to be carried out at the point of maximal abduction.)

Rare cases of rotator cuff injury, where the loss of shoulder motion does not reflect the severity of the tear, and there is no associated pain, may be assessed according to AMA5 Section 16.8c 'Strength evaluation'. Other specific shoulder disorders where the loss of shoulder motion does not reflect the severity of the disorder, associated with pain, should be assessed by comparison with other impairments that have similar effect(s) on upper limb function.

As noted in AMA5 Section 16.7b 'Arthroplasty', 'In the presence of decreased motion, motion impairments are derived separately and combined with the arthroplasty impairment'. This includes those arthroplasties in AMA5 Table 16-27 designated as (isolated).

Please note that in AMA5 Table 16-27 (p 506) the figure for resection arthroplasty of the distal clavicle (isolated) has been changed to 5% upper extremity impairment, and the figure for resection arthroplasty of the proximal clavicle (isolated) has been changed to 8% upper extremity impairment.

Please note that in AMA5 Table 16-18 (p 499) the figures for impairment suggested for the sternoclavicular joint have been changed from 5% upper extremity impairment and 3% whole person impairment, to 25% upper extremity impairment and 15% whole person impairment."

• If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 of the Guidelines.

"AMA5 (p 19) states: Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual's range of motion are good but imperfect indicators of people's efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing. This paragraph applies to inconsistent presentation only.

"Complex regional pain syndrome types 1 and 2 should be assessed using the method in Chapter 17 of the Guidelines."

1. The appellant submits the Medical Assessor made an error of fact in assessing the appellant's right shoulder on the basis she had a "rigidly frozen glenohumeral joint" with a cap of 12% where no such diagnosis had been made and as such the Medical Assessor "assessed the shoulder under a wrong diagnostic premise which amounted to demonstrable error".
2. The respondent submits that the diagnosis of frozen shoulder is not contrary to the weight of the medical evidence and that the appellant's treating surgeon Dr Kinzel made the same diagnosis as did the appellant's treating physiotherapist Mr Do and treating pain physician

Dr Ramachandran. The respondent submits that a mere difference of opinion between medical practitioners qualified by the parties and the Medical Assessor is not, in itself, to establish error as required by s 327(3)((c) or (d) of the 1998 Act (referring the Appeal Panel to Mahenthirarasa v State Rail Authority of NSW [2007] NSWSC 22). 3. The respondent submits the Medical Assessor has explained his reasoning for diagnosing a frozen right shoulder in detail and that error is not made out on the basis of a mischaracterisation of the diagnosis. 4. The Medical Assessor records a history of frozen shoulder following rotator cuff repair on

23 May 2022 and that the appellant had to see a pain specialist who gave her two steroid injections. The Medical Assessor took a history of ongoing pain and stiffness in the right shoulder. The Medical assessor recorded that on repeat testing the right shoulder had very limited range of motion. The Medical Assessor provided a diagnosis of soft tissue injury to the right shoulder. For the reasons provided, the adequacy of which are discussed further, the Medical Assessor then assessed impairment, by analogising the condition to a frozen shoulder. The Medical Assessor made a diagnosis of a soft tissue injury. This diagnosis was open to him based on his clinical examination and clinical experience. The Appeal Panel finds no error with the manner in which the Medical Assessor characterised the injury and diagnosis. 5. The appellant further submits that the Medical Assessor found "consistent examination effort" and that the physical findings "did not impede the application of AMA5 methodology" but then went on to cite 1.36 of the Guidelines to justify the use of his clinical experience rather than assessed range of motion "suggesting [the appellant's] symptoms and signs were not proportional to expected findings" and that "invoking paragraph 1.36 implies the assessor believed the presentation was unreliable or exceptional warranting a departure from the usual method". 6. The respondent submits that the Medical Assessor had appropriately justified his assessment in accordance with 1.36 of the Guidelines. 7. As set out above, 2.14 of the Guidelines provide that most shoulder disorders are to be assessed according to Chapter 16.4 of the Guide 'Evaluating abnormal motion'. The Guidelines set out cases where this would not apply including rare cases of rotator cuff injury, modifications for arthroplasties and sternoclavicular joint. There is no suggestion that his modifications applied to the appellant. 2.5 of the Guidelines sets out the process for assessing range of motion and includes a cautionary note that "if there is inconsistency in ROM, then it should not be used as a valid parameter of impairment" and refers the assessor to paragraph 1.36 of the Guidelines. 1.36 is set out above but in summary acknowledges that range of motion tests are good but imperfect indicators of effort and that an assessor needs to use clinical skill and judgment when considering if the test results are plausible. It allows for modification of the assessment where indicated but requires reasons to be provided. 8. In Vegan, Basten JA (Handley and McColl JJA agreeing) said at [122]:

"On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: (authority omitted). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required."

1. Vegan is consistent with the position taken by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [48]:

".....What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself."

1. The Medical Assessor, on repeated testing, found very limited range of motion in the right shoulder, recording his findings in an appropriate table. In commenting on the consistency of the appellant's presentation, the Medical Assessor recorded:

"The right shoulder was held rigid throughout the entire consultation process during the formal and informal part of the examination, and any attempt, by myself, to achieve any movement, was met with marked voluntary rigidity of the shoulder girdle muscles. However, these physical findings are consistent with the injury and its sequelae, both organic and inorganic and did not impede the application of the AMA 5 Methodology or Workers Comp Guides 4 Edition."

1. That is the Medical Assessor made a finding that the physical findings were consistent with the reported injury.
2. However, when the Medical Assessor comes to explain his assessment of permanent impairment to the right shoulder he proceeds on the basis that the appellant's symptoms and signs were not proportional. The Medical Assessor states that with the near complete absence of any active range of motion in the glenohumeral joint, there is normally also marked visible muscle wasting which was not present and that the scapulothoracic joint is not normally affected.
3. The Medical Assessor then proceeds to assess impairment on the basis of a "rigidly frozen glenohumeral joint", which in his experience has a maximum impairment rating of 11 to 14%.
4. While there may be some clinical basis for the Medical Assessor to question the appellant's presentation the Medical Assessor has undertaken repeated range of motion testing and made a finding that the right shoulder rigidity was consistent with injury and "did not impede the application of the AMA 5 Methodology or Workers Comp Guides 4 Edition".
5. Having regard to the decision as a whole, the Appeal Panel is unable to appreciate the path of reasoning taken by the Medical Assessor in moving from the initial findings with respect to the consistency of presentation to the injury and diagnosis and the later finding that it was necessary to apply 1.36 of the Guidelines and assess impairment by reference to a frozen shoulder. The Appeal Panel finds this failure to expose the path of reasoning is a demonstrable error in accordance with s 327(1) of the 1998 Act.
6. Error is established on this ground.
7. The appellant submits that the Medical Assessor failed to include an assessment of the appellant's pain in assessing impairment of the shoulder and did not provide an assessment for scarring despite mentioning the scar in his examination findings. The appellant submits that the omittance of pain related limitations and scarring constitutes a demonstrable error.
8. Further the respondent submits that the Medical Assessor did not commit error in omitting an impairment consideration of pain limitations and surgical scarring, noting the Medical Assessor described the assessment of pain symptoms and scarring and that the Medical Assessor did not need to provide an explicit impairment assessment for pain and scarring where he did not consider there was a ratable impairment. The respondent noted the requirements of Chapter 18 of the Guides and Table 14.1 of the Guidelines had been met.
9. Pain is generally assessed with reference to the functional impairment with respect to each body system. The Medical Assessor considered whether a finding of complex regional pain syndrome (CPRS) was appropriate and found that the relevant criteria were not met. The Appeal Panel finds no error in this regard.
10. With respect to scarring the Medical Assessor considered and commented on the scars but did not proceed to assess them. While it was pleaded as a body system claimed in the Application to Resolve a Dispute it did not form part of the referral to the Medical Assessor nor did it form part of the claim made on the respondent's insurer noting Dr Shahzard, who the appellant relied on in making the claim, found them to be unremarkable and assessed impairment at 0%. The Appeal Panel finds no error in this regard.
11. Finally with respect to the first ground of appeal the appellant submits that the Medical Assessor erred in his treatment of other expert opinions and fails to explain why his assessment diverges substantially. The appellant submits that the Medical Assessor's failure to provide reasons for the different opinions amounts to a demonstrable error.
12. The respondent submits that the Medical Assessor has regard to the available evidence including radiology and the opinions of Dr Shazad and Dr Gothelf and then assessed impairment based on his own examination findings and clinical judgment. The respondent further noted that while the Medical Assessor can consider other opinions, he is not bound by them (referring the Appeal Panel to Merza v Registrar of the Workers Compensation Commission (2006) NSWSC 939 at [6]).
13. The Medical Assessor is not bound by the opinions of other medical experts who may have examined the appellant and is required to exercise his own clinical judgment in assessing permanent impairment, explaining the reasons for doing so. The Medical Assessor considered the report of Dr Shahzad but explained that he did not find evidence of complex regional pain syndrome and preferred his own assessment. He notes the report of Dr Miniter who didn't provide an assessment of permanent impairment. He comments on the report of Dr Gothelf who also did not find CPRS and assessed 13% based on a range of motion assessment. The Medical Assessor has clearly explained the difference between his assessment and those of Dr Gothelf and Dr Shahzad. The Appeal Panel finds no error.

1. The appellant submits that the Medical Assessor did not adhere to the Guides or Guidelines and as such the Medical Assessor's assessment was made on the basis of incorrect criteria in the following respects:

(a) the Medical Assessor did not follow the method prescribed by Chapter 16 of the Guides in assessing shoulder impairment;

(b) misapplied discretion under 1.36 of the Guidelines where it was not warranted, and

(c) not considering the criteria for assessing pain in accordance with Chapter 18 of the Guides or the skin/scarring under Table 14.1 of the Guidelines.

1. The appellant submits that the degree of permanent impairment assessed by the Medical Assessor did not follow the approved methodology and the correct criteria was not applied amounting to error in accordance with s 327(3)(c) of the 1998 Act.
2. The respondent submits that:

(a) it is not correct that the Medical Assessor "must use" the prescribed methodology in Chapter 16 of the Guides and that paragraph 2.5 sets out the circumstances where it should not be used;

(b) that the Medical Assessor has not erred in applying 1.36 of the Guidelines and detailed reasons were provided, and

(c) it was not necessary for the Medical Assessor to engage specifically with the criteria for pain and scarring where the Medical Assessor had noted findings in relation to these following examination.

1. The complaints raised by the appellant with respect to Ground 2 are similar to those raised with respect to Ground 1 and already considered by the Appeal Panel.
2. The first two complaints with respect to Ground 2, the failure to use the correct methodology and the error in the application of 1.36 of the Guidelines can be dealt with together.
3. The Appeal Panel accepts that it is open to an assessor to divert from the standard methodology in Chapter 16.4 of the Guides and that this is provided for by 2.5 and 1.26 of the Guidelines. Doing so is not an application of incorrect criteria. The error, as found above, is a failure to provide adequate reasons for doing so. Having found error on this basis with respect to Ground 1 it is not necessary for the Appeal Panel to further consider it.
4. With respect to pain, as discussed with respect to Ground 1, the Medical Assessor considered whether the requirements for CPRS were made out and found they were not. There is no suggestion by the appellant that the Medical Assessor misdirected himself with respect to the relevant criteria. There is no error in this regard.
5. With respect to scarring, this neither formed part of the claim as exchanged between the parties noting it was assessed as 0% by Dr Shazad nor part of the referral to the Medical Assessor. The Appeal Panel finds no error.

Ground 3: Procedural error - breach of cl 44 one report restriction

1. The appellant submits that the respondent was allowed to rely on two forensic medical reports, both of which were considered by the Medical Assessor and that this occurred in breach of cl 44 of the Workers Compensation Regulation 2016.
2. The respondent submits that this is not a relevant ground of appeal under s 237(1) of the 1998 Act, that no issue was taken by the appellant when the matter was referred to the Medical Assessor and that the respondent was not able to make an appointment with Associate Professor Miniter and that is why the assessment with Dr Gothelf was arranged.
3. Following the preliminary review by the Appeal Panel on 11 September 2025, the Appeal Panel directed the respondent to file any further submissions and supporting evidence with respect to the unavailability of Dr Miniter and providing an opportunity for the appellant do so the same in response. No further submissions have been received by the Appeal Panel.
4. In circumstances where the Appeal Panel has found error independent of ground three and the findings of Medical Assessor Sher on re-examination discussed below, it is not necessary for the Appeal Panel to deal conclusively with this issue.
5. What is evident however is that it is an issue that ought to have been raised prior to the matter being referred to the Medical Assessor and dealt with at that time. It remains an issue that the parties need to consider and have dealt with prior to any further re-examination of the appellant once maximum medical improvement has been reached.

Review of original Medical Assessment Certificate

1. Having found error with respect to the assessment of the appellant's right shoulder the Appeal Panel concluded it was unable to assess the correct degree of impairment from the material before it and determined that the appellant should be re-examined by a Medical Assessor member of the Appeal Panel.
2. The reassessment was undertaken on behalf of the Appeal Panel by Medical Assessor Sher. Medical Assessor Sher reported to the Appeal Panel as follows:

"Mrs Yu was seen in the presence of her daughter Myat Ang as well as interpreter Cherrie Mangrai. The patient used a combination of her own English language skills and use of the interpreter.

She is a 60 year old right handed lady whose history is well documented. I confirmed with her the history from the MAC, which was correct. She had a fall with a dislocation and then underwent an arthroscopic rotator cuff repair and labral repair on 24th May 2022.

Her wound healed without infection but she had immediate pain after the surgery which has not resolved.

Currently her main pain is that of a burning sensation anteriorly in the shoulder. It improves with painkillers but occasionally it causes her to drop objects. The shoulder feels weak and stiff.

She is using Panadeine Forte a maximum of three times a day, but also takes medication for diabetes, cholesterol and blood pressure.

Past treatment includes two injections. She is not sure exactly where the injections were given, but they did help for about a month, with a reduction but not complete resolution of her pain before the pain returned. She feels that her grip is weak.

She lives with her daughter who does all of the household tasks, and helps her dress with her brassiere and anything other than a front opening shirt.

She is performing physiotherapy regularly with a red Theraband but this causes pain for her.

She is using her left shoulder exclusively and now finds that this is painful with a progressive loss of motion.

She tells me she has had recent imaging of the left shoulder which I was not able to access, but of the right shoulder she had an MRI scan on 2nd September 2025 at Rouse Hill Imaging which showed a prior labral repair anteriorly, thinning of the glenohumeral articular cartilage and a rotator cuff repair. There was mild subacromial bursal thickening. No significant glenohumeral joint capsular thinning to suggest adhesive capsulitis... moderate acromioclavicular joint osteoarthritis noted.

The patient tells me that she is scheduled for surgery next week for a scar release procedure.

Her clinical examination showed well healed surgical scars around the shoulder. Anteriorly there was a 3cm keloid scar from one of the portals. Her range of motion was difficult to achieve because she was so apprehensive about moving the shoulder.

She did have some hand stiffness, with inability to fully make a fist.

Right shoulder active forward elevation 55 degrees, passive 60 degrees, active extension 10 degrees, passive to 20 degrees, active abduction 40 degrees, passive 45 degrees, active adduction 5 degrees, passive 10 degrees.

She was unable to get her arm to 90 degrees of abduction to assess external rotation, however with the arm in adduction she had 20 degrees of external rotation, and internal rotation to her buttock.

Her contralateral shoulder had significant loss of motion with 90 degrees of active and 170 degrees of passive forward elevation, 50 degrees of extension, 85 degrees of active abduction and 100 degrees of passive abduction, 10 degrees of active adduction and 20 degrees of passive adduction, and external rotation of 45 degrees with internal rotation to T12 in adduction. Her rotator cuff power was well maintained. She had significant hypersensitivity around the shoulder generally, including her biceps and all bony prominences. She was too apprehensive to test instability but there certainly did not appear to be any.

Based on the information provided by the patient; she is scheduled for revision surgery next week. The details of the surgery were not available to me but there will certainly be a period of recovery required after the operation and therefore her condition has not stabilised. This means that a permanent impairment assessment is not appropriate at the moment. Once more details of the operation and recovery period are available the length of time to reach MMI can be assessed."

1. The Appeal Panel must assess impairment, as must a Medical Assessor, with reference to the Guides and Guidelines.
2. 1.15 of the Guidelines provide:

"Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker's condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment."

1. The Appeal Panel, having reviewed the assessment and findings on examination of

Medical Assessor Sher is satisfied that, in circumstances where the appellant has given a history that she is to undergo revision surgery, that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable. 2. Not having further information with respect to the proposed revision surgery, the Appeal Panel is not able to provide guidance on when maximum medical improvement will be reached. 3. For these reasons, the Appeal Panel has determined that the MAC issued on 8 July 2025 should be revoked. The Appeal Panel, having found that maximum medical improvement has not been reached declines to assess permanent impairment at this time as the degree of permanent impairment is not fully ascertainable.

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Giblin and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Total % WPI (the Combined Table values of all sub-totals)